Not registered with us?

Implementing a Mediation Mindset

Mary Rafferty

Consensus Mediation

The Mediation Act, 2017 was passed in September 2017 and is the culmination of a slow but steady increase in the use of mediation to resolve disputes in a variety of contexts. The workplace and employment arena has also seen a growth in the use of mediation compared to more time-consuming adversarial processes such as investigations and litigation, to deal with conflict and complaints.

So is ‘mediation’ the new kid on the block, the panacea for all people problems, the new buzz word to be doing and training in and trying to introduce into an organisation?

There is no doubt that mediation as an intervention has many benefits. Research into workplace mediation shows a high degree of satisfaction from users of the process as well as settlement rates in the 80-90% range. The speed and informality of the intervention minimise the long-term damage to working relationships, in contrast with the lengthier, formal and adversarial nature of investigations.

However, the research is also showing is that parachuting in external mediators in a piecemeal fashion, as a last resort with hard cases, has limited impact. Rather, the focus needs to be on pro-active prevention and management of workplace conflict, where it’s not just about ad hoc mediation interventions but implementing a ‘mediation mindset’ throughout the organisation.

So what do we mean by a ‘mediation mindset’?

A mediation mindset is focused on embedding the understanding of conflict not as something to be avoided or suppressed. Instead, it’s about accepting the inevitability of conflict and taking a strategic approach to managing it. It’s about ensuring that both the skills and responsibility for effectively managing conflict are devolved right throughout the organisation.

ACAS, the UK’s version of the WRC, has carried out a number of in-depth studies over the past 5 years into dispute resolution in the workplace and in particular the role of mediation. (See below for further reading and references).

“One of the main findings was that the piecemeal adoption of mediation is not a panacea for workplace conflict. Instead, participants pointed to the need for organisations to adopt more integrated approaches which locate conflict management as a central element of HR strategy” (Latreille and Saundry, 2015)

This infographic highlights a smorgasbord of interventions and processes that could underpin a co-ordinated and cohesive strategy to prevent and manage conflict and complaints in organisations.

Policies and procedures that emphasise informal conflict resolution:

Organisations need to have a robust mediation policy with clear guidance, expectations and procedures that educate employees about conflict management and emphasise the benefits of early resolution and options such as mediation.

Dignity at work policies in most organisations make no more than a passing reference to the need for mediation. In contrast, the Civil and Public Service Dignity at Work Policy which was reviewed in 2015, has a strong emphasis on mediation. For example:

The policy’s preamble states:

“The intention of this policy is to encourage the use of informal resolution methods and the use of mediation as often and as early as possible during disputes. Complaints should only proceed to formal investigation once efforts to utilise local resolution methods or mediation have been exhausted, or are considered to be unsuitable due to the nature of the complaint” Dignity at Work, 2015, An Anti-Bullying, Harassment and Sexual Harassment Policy for The Irish Civil Service

Explicit reference to the option of mediation as being available at any stage of the complaints procedure: “Mediation can be used to achieve early intervention and resolution for any workplace conflict under this policy” (emphasis in the policy document)

A detailed overview of how the mediation process works, presented both in text and graphic format. It also spells out ten key benefits of using mediation to resolve issues.

Introduction of a new role and step in the process - the Designated Person* (as cited in the HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work). Their function and role is to oversee the complaint once it reaches the formal stage, part of which involves providing a compulsory information session on mediation (emphasis added).

Line management training

One of the key barriers identified across all of the ACAS research was resistance from line managers to implementing soft skill approaches such as mediation and/or having difficult dialogues. This stemmed to a large extent from lack of confidence as well as skills/know-how in handling difficult conversations and/or mediating informally. Fear that efforts to address performance or behavioural issues might result in a backlash grievance fed into their reluctance to engage with potentially confrontational conversations. There was also a concern that such conversations could lead to grievances or complaints against managers.

The research identified a number of measures that could support managers, whom it identified as key actors in the management of conflict in the organisation. This was seen as a central aspect of the HR strategy and also reflected in the development of key managerial competencies within the organisations surveyed.

Engagement and buy-in to a culture of resolution, at senior levels, to be modelled and communicated throughout the organisation. People managers need to feel confident that they will have support to put the time and effort into resolution interventions, as well as around any legal exposure they might fear, in addressing ‘difficult conversations’.

Competency frameworks for managers at all levels to include people skills. For example, at the recruitment stage in one organisation, part of the process involved participating in a thirty-minute role play about a performance management issue with a member of staff (Latreille and Saundry, 2015).

Training and coaching in relevant skill areas e.g.

- Handling difficult conversations. A recent CIPD survey evidence revealed that ‘conflict management’ and ‘managing difficult conversations’ were the two most cited kills that line managers found most difficult to apply (CIPD, 2013).

- Conflict coaching: In contrast to mediation, conflict coaching is about handing back capability and responsibility to people to resolve issues themselves. For example, it can enable and empower managers who hold accountability for raising ‘difficult conversations’. In one organisation, conflict coaching was introduced with good success as a new initiative to support individual managers to develop their confidence and capability in handling difficult issues. (Latreille and Saundry, 2015)

- Mediation skills for managers: Saundry & Wibberley (2012) pointed to the need to locate mediation skills “closer to the locus of conflict and disputes…[by] placing a greater emphasis on the provision of mediation skills to key actors as opposed to training accredited mediators”

Accredited mediation training for a smaller cohort of staff as internal mediators

Having a pool of trained mediators available in-house makes the process much more accessible and available both in terms of time and cost. Saundry and Wibberley (2015) found that introducing in-house could have a “transformative effect on workplace relationships and critically lay the platform for channels of communication which facilitate the early and informal resolution of workplace conflict.”

They cited the example wherein one organisation this mediation training had helped to rebuild relationship between managers and trade union representatives such that “an adversarial approach to disciplinary and grievance issues was replaced by one in which the parties sought to resolve issues at the earliest possible stage through informal discussion and negotiation” (Saundry and Wibberley, 2015).

Ensuring that the HR function continues to play a central and strategic role in conflict management

While the role of operational managers in handling conflict constructively is critical, the research also pointed to the continued need for HR to strategically coordinate and foster the development of a resolution culture. This means on-site, hands-on support (rather than devolution of all HR to remote shared services) as well as adequate training – in mediation skills, conflict coaching as well as having a good theoretical knowledge base around the dynamics of organisational conflict competence. “…[O]rganisations [need] to adopt more integrated approaches which locate conflict management as a central element of HR strategy” (Saundry et al, 2014).

Conclusion

Clearly greater attention and use of formal mediation in the workplace is to be welcomed. However, it is likely to be much more effective and impactful in the context of an organisational ‘mediation mindset’. In the words of Saundry and Wibberley, 2012:

“…organisational support for mediation is not enough in itself – instead there needs to be a recognition of the longer-term and indirect benefits of conflict management and its centrality to meeting commercial and strategic organisational objectives”

*This role is not the same as the ‘Contact Person’ whom parties to a complaint may contact and who will provide listening support and explain the resolution options but not in any way intervene or advise people what to do.

This article is correct at 15/12/2017

Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.